In circumstances where an immigrant is facing mistreatment, abuse or extreme cruelty at the hands of their US citizen spouse there is help. Many immigrants feel helpless or like they do not have rights or any protection for them in the United States, making out of status or illegal immigrants the subject of extreme cruelty and abuse. The Violence Against Women’s Act allows for immigration benefits for the victims and survivors of domestic violence and allows for these immigrants to self-petition themselves for lawful permanent residency without the need for the US citizen spouse or permanent resident.
Section 1: Keep a Journal of Abuse Incidences and Events with Dates or Photos of Injuries and Abuse
In order for an abused immigrant to self-petition themselves under the Violence Against Women’s Act it is important to be able to chronicle and recall incidences of on-going abuse with dates and details. A journal or book with entries of specific memories or accounts of abuse can be very helpful in an immigrant’s application process and serve as evidence of extreme cruelty. Photos of injuries as well as marks, bruises, cuts or damage to property can be very helpful in establishing a history of domestic violence between the US citizen spouse and the immigrant.
Section 2: Call the Police and Obtain a Police Report
It is very beneficial to a Violence Against Women’s Act application to include a police report, arrest records or other court records to establish law enforcement evidence of on-going mistreatment and abuse. Obtaining a police report also gives more credit to the VAWA application as arresting officers make notes in the report of the events and cooperation of both parties involved. Immigrants who are undocumented or do not have sufficient identification may face obstacles in obtaining a police report or court records as these institutes require to see ID. If a refusal is given by an officer, a written statement indicating the victim’s attempt to obtain a report but lack of ID will help a VAWA case as well.
In order to obtain a police report the self-petitioner will have to:
- Establish their identity
- Fill out a request for public records form
- Give your information and phone number to the officer so they can contact you when the report is ready
- Pick up the report and pay the fee for the report
Section 2.1: Restraining Orders Can Help Strengthen your Case
Though a restraining order is not necessary, it helps to strengthen a case as it establishes intent to distant oneself from danger and also supplies legal repercussions to the abuser in the event that he or she violates the restraining order.
To ask for a Domestic Violence Restraining Order there are several steps you have to take. But first make sure that:
- Getting a restraining order is a right move for you. Read: Can a Domestic Violence Restraining Order Help Me? (Form DV-500-INFO)
- You can qualify for a Domestic Violence restraining Order. In order to do this, you and the person you want t restrain must be:
- Married or registered domestic partners,
- Divorced or separated,
- Dating or used to date,
- Living together or used to live together,
- Parents together of a child, or
- Closely related (parent, child, brother, sister, grandparent, in-law)
Filing a Request for a Restraining Order
Step 1. Fill out your court forms and prepare to file
Step 2. File your court forms with the court
Step 3. “Serve” your papers on the restrained person
Step 4. Get ready and go to your court hearing
Step 5. After the court hearing
For additional court information for the above restraining order, visit the California Courts website on Domestic Violence (http://www.courts.ca.gov/selfhelp-domesticviolence.htm)
Section 3: Declaration of On-Going Abuse and Extreme Cruelty
It is important to summarize with as much detail and description as possible, the events and incidences of abuse with the above listed sources, if possible. A good, supportive declaration for VAWA includes aspects that show the abuser’s mistreatment of the immigrant, as well as using his or her lack of legal status or the US citizen spouse’s ability to file for immigration relief against the immigrant. It is important to discuss incidents and events that can also be supplemented with use of photo evidence or police reports or other documents with dates that correlate support with the declaration.
Section 4: Good Moral Character of Self-Petitioning Victim of Abuse
A requirement in order to self-petition for the Violence Against Women’s Act is to show the good moral character and nature of the victim of abuse. If the immigrant has never had any of his or her own arrests or violations of immigration law, other than being out of status, then it is important to get police clearance illustrating the self-petitioner’s innocence. A fingerprint can be submitted to each state’s Department of Justice to give state-wide police clearance. Alternatively, a fingerprint card can also be submitted to the FBI to give national clearance of the immigrant. If any arrests or convictions are on the immigrant’s criminal history then a declaration and a waiver of these prior crimes must also be submitted for consideration of good moral character. The most significant factor that can undermine an immigrant victim’s ability to prove good moral character is a criminal history. Battered immigrant victims can end up as defendants in criminal cases for a variety of reasons. Examples include:
- The police made a dual arrest rather than determining who was the predominant perpetrator;
- The perpetrator spoke English with the police and the police could not or did not communicate with the victim when the police arrived and the abuser convinced the police to arrest the victim;
- The victim was forced into criminal behavior by the abuser;
- The victim shoplifted essential survival items while escaping abuse.
Section 5: Types of Documents and Evidence to Support Victim of Domestic Violence Status
Although police reports or conviction records are not required to be included with an application for VAWA relief, it is highly recommended to obtain and include these documents in order to support an immigrant’s claims. The following documents are examples of what can be submitted as evidence:
- Police Reports
- Statements or Declarations from Police Personnel
- Conviction/Court Documents
- 911 Emergency Call Transcripts
- Restraining or Personal Protection Orders
- Photographs of:
- Damage to Property, Personal Items
- Marks, Bruises, Cuts
- Torn Clothing
- Medical Reports or Hospital Release Papers
- Doctor’s Office
- Prescription for Medication or Painkillers
- Doctor’s Note for Depression/Anxiety/Weight-loss/Sleep-loss
- Letters from Doctors/Therapists/Counselors
- Letters from Domestic Violence Counselors
- Letters from Domestic Violence or Other Shelters
- Declarations from Witnesses of Abuse
- Any Correspondence from the Abuser
Section 6: Good Faith Marriage
In order to self-petition under VAWA the self-petitioner must establish that the marriage with the US Citizen or Lawful Permanent Resident was entered into in good faith and not solely to obtain immigration benefits or to avoid immigration law. The only circumstance in which an applicant can self-petition under VAWA without ever having been married to the US Citizen or LPR is if he or she can prove that they believe to have been legally married as a result of the abuser’s lies or misrepresentation.
Documents that can be used to establish a bona-fide marriage relationship can include, but are not limited to:
- Birth certificate(s) of any children from the marriage
- Photos of the abuser and self-petitioner together
- Before marriage
- Wedding ceremony
- During marriage
- With friends and family
- Letters between abuser and self-petitioner
- Lease agreements or mortgages with abuser and self-petitioner’s names
- Declarations from friends and family
- Evidence of trips taken together
- Hotel receipts
- Receipts from purchases with dates/locations
- Marriage Certificate
- Wedding guest list/invitation
- Documents with married name on them
- Joint bank account statements
- Joint Tax Returns
- Joint Credit Cards
- Life Insurance Policy
- Joint Car Insurance
- Divorce judgment/decree (if now divorced from abuser)
If the self-petitioner is currently not married to the abuser by reason of the abuser’s bigamy, death or divorce, the self-petitioner may still qualify if he or she can prove that:
- He or she believes that they were legally married to the abuser, but the marriage was invalid due to the abuser’s bigamy.
- Abused spouses who did not know they married a bigamist need to provide evidence that their marriage ceremony was actually performed.
- He or she was the spouse of a US citizen who died within the past two years.
- The self-petitioner must prove that he or she was the spouse of an abusive citizen and that his or her spouse died within the past two years.
- He or she was divorced from the abuser within the past two years.
- The self-petitioner must demonstrate that he or she was divorced from the abuser within the past two years. The Self-petitioner must demonstrate that he or she was divorced from the abuser within the past two years, and that there was a connection between the divorce and the battery or extreme cruelty by the abusive spouse.
Section 7: Forms of Abuse
Abusers use many tactics to establish and retain control over their victims. While in some cases only one form of abuse will be sufficient to establish a case of extreme cruelty, other situations may require a victim to establish that many different acts, when examined collectively, constitute extreme cruelty. Extreme cruelty can include the following conduct:
- Intimidation and degradation;
- Economic and employment-related abuse;
- Social Isolation;
- Sexual abuse;
- Immigration-related abuse;
- Possessiveness and harassment.
Intimidation and Degradation
Experts acknowledge that batterers commonly use a variety of tactics beyond violence to keep victims in abusive relationships. Abusers use threats to enhance a victim’s dependence on him or her by creating fear, stress, and humiliation, if the victim tries to leave or if she or she does not comply with the abuser’s demands. Abusers use different forms of threats including: standing too close to victims, clenching their fists, sending warning looks, or displaying weapons to their intimate partners. In cases where the victim is also an immigrant, abusers often threaten to report them to the immigration authorities. Threats, intimidation and degradation trap victims in abusive relationships, and can often form the basis for proving extreme cruelty.
Economic and Employment-Related Abuse
The lack of access to economic resources is the single largest barrier to a victim who seeks to leave an abusive relationship. Victims may be prevented from participating in the labor market, or sabotaged at their workplaces. Abusers are known to stalk or harass victims at work, and to send them threatening email or voice mail messages that may cause the immigrant victim to be fired or forced to leave the job for safety reasons. Furthermore, many illegal and undocumented immigrant victims are forced by their abusers to work illegally, and then their abusers threaten to have them deported.
Abusers may attempt to isolate their victims by prohibiting them from escaping, seeking help and developing support systems or maintaining the victim’s existing support systems. The abuser may restrict the victim from using the phone, prohibit him or her from going to work or school, make the victim depend on the abuser for transportation, limit the victim’s contact with family and friends, or prevent her from attending social activities.
Battered immigrants may be even further susceptible to social isolation due to the fact that many are far from any supportive community of family or friends. To ensure isolation, an abuser might prevent a victim from learning English, or from having contact with people who speak English. A linguistic barrier minimizes a victim’s ability to access health care, social services, domestic violence programs, immigrant rights agencies, law enforcement and the courts.
Sexual abuse encompasses the criminal legal definition of sexual assault, requiring elements of lack of consent, force or threat of force, and sexual penetration, and may include a broader range of behavior including unwanted sexual conduct engendered through more subtle or implicit threats. Marital rape is a crime in most jurisdictions in the United States.
Rape, sexual assault and any unwanted sexual contact are crimes that constitute battery. In some VAWA self-petitioning cases, immigration attorneys, advocates, judges and USCIS adjudicators make the mistake of treating cases of emotional abuse, in which sexual abuse is also present, as extreme cruelty cases and not battery cases. When sexual abuse is present and can be proven through the victim’s affidavit and other evidence, the VAWA petition can be based on battery and extreme cruelty.
When Immigration related abuse is present in a relationship it is a key indicator of extreme cruelty. Abusers of immigrants often threaten to report their victims to the immigration authorities. When immigrants are dependent on their partners for legal immigration status, are undocumented, or have a vulnerable non-permanent immigration status, the power of immigration related abuse is accentuated. Immigrants are placed in the untenable position of having to choose between living with ongoing and escalating abuse or taking action to stop the abuse and risking deportation. Others believe that they will be turned away from help by social services, health care and the justice system because they are non-citizens.
Possessiveness and Harassment
Possessiveness and harassment also provide important evidence of extreme cruelty. An abuser may be jealous and possessive of the victim. The abuser might accuse the victim of infidelity, and of attempts to attract other men or women. Courts have ruled in family law cases that various types of behaviors can constitute extreme cruelty. An abuser may open the victim’s mail, call the victim frequently at home and at work or drive or loiter around the victim’s home or work or shelter, constantly write letters, text messages or emails to the victim, contact the victim’s family, friends or employer, interrogate the children or other family members; stalk, chase the victim’s car, or file frivolous legal actions against the victim.
Like possessiveness, harassment is destructive of a victim’s peace of mind and security. Through harassment the abuser demonstrates his control over the victim publicly. Harassment can humiliate a victim by portraying him or her as weak and subordinate. Public humiliation may be a culturally based form of extreme cruelty particularly among cultural groups that highly value privacy.
If you or a loved one are in need of help with your circumstances, please do not hesitate to contact our experienced VAWA immigration attorneys or visit Mike G Law.